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Preventive Law within the Faith Community

By

David V. Edling, J.D., M.A.R.1

Director of Church Relations

Peacemaker Ministries

and

Lynn Pace, J.D.2

Director of the Institute for Christian Conciliation

Peacemaker Ministries

 Copyright © 2001 Peacemaker® Ministries

It is probable that many readers of this paper, like most people in America, have a religious background. Regardless of their current level of involvement in a local church or synagogue, many Americans believe in God and know that the Holy Bible tells them about who God is and by what principles life should be lived. In the course of revealing how God relates to people, the Bible also provides guidance about how people should relate to each other, particularly when they find themselves in conflict with one another.

Notwithstanding the inherently religious basis for biblical conflict resolution, this is not a religious paper, except in the sense that all matters of essential belief are religious in nature. Rather, the focus of this paper is the use of biblical conflict resolution, commonly known as biblical peacemaking or Christian Conciliation, as a preventive law mechanism that is uniquely suited to the values and needs of individuals and organizations that comprise the Christian faith community.

Seeking guidance from Scripture for conflict resolution is by no means a new concept. The worldview that birthed the English common law tradition based its jurisprudence on universal principles of the moral law, including the Ten Commandments, and natural law, the law as written on men’s hearts by their creator, that, if followed, is consistent with the natural order of the world. Numerous jurisprudential principles still extant in the practice of law today find their origins in biblical principles. For example, a defense attorney may well argue the principle of lex talionis (an eye for eye, a tooth for a tooth) as a restraint on punishment or restitution exceeding the nature of an act. Similarly, punitive damages find their historical root in the Mosaic code of Exodus, Leviticus, and Deuteronomy. Even the burgeoning field of alternate dispute resolution (ADR) has recognizable roots in the wise counsel Moses received from his father-in-law Jethro in Exodus 18:13-26 and in Jesus’ teaching, in the eighteenth chapter of Matthew’s gospel, concerning how the church can help people solve problems between themselves.

Is this biblical history lesson still relevant today? What enduring wisdom about resolving conflict does the Bible offer? With society’s increasing pluralism has come a corresponding shift in worldview assumptions, often manifested by the exchange of certain absolutes for the shifting sands of post-modernism, reflected in trends toward philosophical subjectivism, legal positivism, and jurisprudential pragmatism. The solid biblical foundation of Christian Conciliation is an appealing alternative for many people of faith. Even so, it is wise to confirm in advance whether there is congruence between the foundational assumptions underlying Christian Conciliation and the worldview espoused by the individuals or organizations considering Christian Conciliation as a method of choice to resolve conflict.

For those holding to the view that the Bible is divinely inspired and absolutely authoritative as the Word of God, a commitment to a biblically faithful method of resolving all conflicts, including legal disputes, is a matter of the consistent practice of their faith. Because the eighteenth chapter of Matthew’s gospel establishes the biblical warrant for mediation, and the sixth chapter of the apostle Paul’s first letter to the Corinthian church strongly commends arbitration, these two passages have become the cornerstones of a widespread ADR practice among people of biblical faith. Within some denominations, failure to resolve conflicts through an appropriate form of Christian Conciliation (such as discussion, negotiation, mediation, and/or arbitration) could result in church discipline, or even expulsion from the church.

Even those who believe that the narrative history, songs, parables, dialogue, prophesy, and other forms of literature found in the Bible comprise a non-authoritative record of what two ancient religious communities thought about God and the nature of his character, may nonetheless find the practice of Christian Conciliation an attractive and effective alternative to its secular dispute resolution counterparts or litigation. The Bible’s message of restoration and relationship offers enduring hope in the midst of conflict.

In response to the expectations and needs of a Bible-centered faith community, hundreds of attorneys in the United States have been trained in the biblically-based methods and procedures of Christian Conciliation, and many Christian denominations have incorporated these principles into their governing documents in an effort to prevent or discourage divisive litigation. Peacemaker® Ministries, a non-profit organization that grew out of the Christian Legal Society’s early faith-based ADR work in the late 1970’s, conducts training for attorneys and others in the practice of Christian Conciliation. Most attorneys taking this training do so in order to expand their practices into the faith community, and further the work of preventive law within their own denominations. Some attorneys have made Christian Conciliation a full-time practice.

Peacemaker Ministries’ Institute for Christian Conciliation™ administers scores of mediation and arbitration cases nationwide each year. Many of these cases involve multi-million dollar claims, and many have arisen out of contractual disputes subject to the following binding arbitration clause:

The parties to this agreement are Christians and believe that the Bible commands them to make every effort to live at peace and to resolve disputes with each other in private or within the Christian church (see Matthew 18:15-20; I Corinthians 6:1-8). Therefore, the parties agree that any claim or dispute arising from or related to this agreement shall be settled by biblically-based mediation and, if necessary, legally binding arbitration in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation, a division of Peacemakerâ Ministries (complete text of the Rules is available at www.HisPeace.org). Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction. The parties understand that these methods shall be the sole remedy for any controversy or claim arising out of this agreement and expressly waive their right to file a lawsuit in any civil court against one another for such disputes, except to enforce an arbitration decision.

The enforceability of this clause was recently tested and upheld in Encore Productions, Inc. v. PromiseKeepers, 53 F. Supp. 2nd 1101 (D. Colorado, 1999), where the Court acknowledged that people of faith are free to make contractual agreements to resolve conflicts in a manner consistent with their common faith convictions. 3

Faith-based preventive law practices are growing more prevalent in the United States and abroad. The use of contractual conciliation clauses contributes to this trend, as does the growing availability of qualified and experienced Christian Conciliation practitioners. Christians from almost every denomination are being trained in mediation and arbitration through an extensive program of (1) preliminary reading and self-study, including a 23-hour audiotape course with accompanying study manual; (2) a live 20-hour mediation practicum; (3) advanced course work for application of conciliation principles in a variety of subject areas; (4) a live 20-hour arbitration practicum; and (5) 50 hours of case experience under the mentoring oversight of a Certified Christian Conciliator.TM Beyond the initial requirements for certification, annual minimum requirements for continuing education and experience apply to Certified Christian Conciliators. While most Certified Christian Conciliators are attorneys, many pastors and Christian counselors have also earned this designation. Additional information about this training is available on the Peacemaker Ministries website at www.HisPeace.org

In addition to this professional-level training, many churches use resources developed by Peacemaker Ministries to equip their members to take early actions that will either resolve or significantly minimize potentially litigable conflicts. People of faith generally recognize the inconsistency of believing in the relevance of Holy Scripture for some life-guiding principles and then rejecting it for others.

Members of the legal profession have endorsed the use of Christian Conciliation in appropriate cases. Experienced attorneys know that while litigation may result in a legal decision, little is done to protect or rebuild personal relationships. Parties who may have once been best friends in a business partnership, or cooperating companies that previously enjoyed competitive success in a team arrangement, may find that a lawsuit has cost them valuable relationships. Judges in a number of jurisdictions have pointed litigants to Christian Conciliation as the forum and means for resolving disputes. Likewise, attorneys sensitive to clients that express a faith commitment have served their client’s problem-solving needs by referring appropriate cases to Christian Conciliation administrated by Peacemaker Ministries. By working closely with attorneys, Peacemaker Ministries facilitates the best choice of dispute resolution options a client may consider.

Resolving conflicts through Christian Conciliation can provide the context for problem-solving, establishment of future preventive safeguards, and the rebuilding of trust and personal relationships. The best possible preventive law measure for Christian churches, individuals, and organizations may well be the diligent development and maintenance of a culture of peacemaking within the Christian faith community.

 

*  If readers would like to communicate with Dave Edling, please click on this e-mail address: www.HisPeace.org.

 

1. David Edling is a 1976 graduate of California Western School of Law and a 1994 graduate of Westminster Theological Seminary in California. He may be contacted at dedling@HisPeace.org.

2. Lynn Pace is a 1989 graduate of Harvard Law School. She may be contacted at lpace@HisPeace.org.

3. Specifically, in Encore Productions, Inc. v. PromiseKeepers, the Court noted that

A strong federal policy favoring arbitration for dispute resolution exists, and this policy "requires a liberal reading of arbitration agreements." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 23 n. 27, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). This means that any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. See id. at 24-25, 103 S.Ct. 927; Coors Brewing Co. v. Molson Breweries, 51 F. 3d 1511, 1514 (10th Cir. 1995) ("all doubts are to be resolved in favor of arbitrability") (citations omitted).

Encore Productions, Inc. v. PromiseKeepers, 53 F.Supp.2d 1101, 1109-1110 (D. Colo 1999).

In response to Encore’s arguments opposing PromiseKeepers’ motion to dismiss, the court upheld the arbitration clause, notwithstanding its "Christian" nature, stating its reasoning as follows.

In contesting PK’s motion, Encore presents various arguments centered upon employment of Christian Conciliation as the means of arbitration. I address these arguments in turn.

i.

Encore first argues that this case should not be dismissed because the choice of law provision in the Service Contract conflicts with the governing authority under the Rules of Christian Conciliation. Encore notes that the Service Contract contains a choice of law provision which states that Colorado law will govern its interpretation. (Service Contract ¶ 22). Yet, the Rules of Procedure for Christian Conciliation dictate that, "the Holy Scriptures (the Bible) shall be the supreme authority governing every aspect of the conciliation process." (Rules of Procedure for Christian Conciliation, ¶ 4).

For purposes of analysis here, my review of the Rules for Christian Conciliation lead me to conclude that they are not impermissibly inconsistent with the application of Colorado law. Rule 42 of Christian Conciliation states that, "should these Rules vary from state or federal arbitration statutes, these Rules shall control except where the state or federal rules specifically indicate that they may not be superseded." (emphasis added). The choice of law provision will require that the parties look to Colorado law to see whether it supersedes a rule. Rule 40 of the Christian Conciliation Rules states that arbitrators must grant relief that is "within the scope of the agreement of the parties." Because the Service Contract contains a Colorado choice of law provision, the arbitrator must fashion a result that is consistent with Colorado law.

Most importantly, however, Encore’s argument regarding the possibility of an unenforceable arbitration award by Christian Conciliation is premature. Encore entered into an agreement to arbitrate, knowing that Christian Conciliation would be employed under the agreement. Courts hold that, generally, disputes should be submitted to arbitration in accordance with parties’ contract, and that consideration of what may later happen at the arbitration is premature. See Vimar Seguros y Reasegures, S.A. v. M/V Sky Reefer, 515 U.S. 528, 540 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995) (claim was "premature" because it had not yet been "established what law the arbitrators will apply to petitioner’s claims or that petitioner will receive diminished protection as a result," and because the courts have the limited power to review an award for illegal results); Ohio Reinsurance Corp. v. British National Insurance Co., 587 F. Supp. 710, 712 (S.D.N.Y. 1984). Encore must abide by its agreement in the first instance.

ii.

Encore also argues that I should not enforce Christian Conciliation because theological conclusions made in the Conciliation may not be reviewed by the courts.

District courts have the power to enforce secular contract rights, despite the fact that one of the contracting parties may base their rights on religious affiliations. See Elmora Hebrew Center, Inc. v. Fishman, 125 N.J. 404, 593 A.2d 715, 729 (1991). The arbitration agreement sought to be enforced in this case is a secular contract right.

A court can, and should, apply neutral principles of law to determine disputed questions that do not implicate religious doctrine. Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979). "Neutral principles" are secular legal rules whose application to religious parties or disputes do not entail theological or religious evaluations. See id. I recognize that I must diligently avoid impermissible First Amendment entanglement. However, by employing neutral principles, courts can review decisions of religious bodies within permissible constitutional boundaries. See id. Thus, if cause is later shown to review the Christian Conciliation’s arbitration results, a court can do so within the limitations governing review of any arbitration award. This is especially true in this case where the claims do not involve religious determinations or doctrines.

Encore initially agreed to submit its claims to Christian Conciliation in signing the Service Contract. Encore is bound by its contract. Civil courts have only "marginal review" power over the decisions of arbitral bodies, secular and religious. See Presbyterian Church in United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 447, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969). For example, inquiry into a religious determination may implicate fraud and collusion. These grounds parallel the limited basis on which courts will review the results of conventional arbitrations. See Siberian Eastern Orthodox Diocese for United States of America and Canada v. Milivojevich, 426 U.S. 696, 713, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976) (not allowing court review of "arbitrariness" of a religious tribunal’s decision). Consequently, although Christian Conciliation may be characterized as a religious tribunal, any award in arbitration is subject to limited review.

iii.

Finally, Encore argues that compelling Christian Conciliation will violate their agents’ and employees’ rights to the free exercise of their religion under the First Amendment. Encore argues that, as a corporation, it cannot validly consent to participate in proceedings of a religious nature and thereby bind its agents and employees to participate in these proceedings without their individual consent.

Encore is incorrect in its assessment of the law. Ordinary contract principles determine who is bound by written arbitration provisions. See Fisser v. International Bank, 282 F.2d 231 (2d Cir. 1960). Encore and PK executed the Service Contract which contains an enforceable arbitration provision. The arbitration process between these corporations contemplates participation by their principals. By executing the Service Contract on behalf of Encore, Encore’s principals consented to participate in an arbitration governed by the Rules of Christian Conciliation.

Furthermore, although Encore is correct that courts cannot employ "religious organizations as an arm of the civil judiciary to perform the function of interpreting and applying state standards," here the parties themselves agreed and consented to arbitration before Christian Conciliation. (Encore’s Objection to PK’s Motion to Dismiss or Stay Proceedings, p. 7). Although it may not be proper for a district court to refer civil issues to a religious tribunal in the first instance, if the parties agree to do so, it is proper for a district court to enforce their contract. Therefore, Encore is now precluded from challenging the enforcement of this valid agreement. See Elmora Hebrew Center, 593 A.2d at 731.

Encore voluntarily signed a contract containing a written arbitration agreement that clearly and expressly disclosed that arbitration would be submitted to Christian Conciliation. This manifests intent to be bound by Christian Conciliation’s decree and a knowing and voluntary waiver of their rights to pursue litigation in a secular district court. See id. And, significantly, in a letter written to counsel for PK on September 10, 1998, well after the date of the Termination agreement, counsel for Encore stated that Encore was "willing to discuss initiating Christian Conciliation as mandated under the contract." (Exhibit 2 to PK’s Reply to Encore’s Response, emphasis added).

Impermissible First Amendment entanglement is speculative at this juncture. Indeed, refusal to enforce the parties’ arbitration agreement could itself arguably constitute an impermissible entanglement. PK could claim impedance of the practice of religion or creation of an unjust bias against religion, thereby depriving PK of its free exercise rights. See, e.g., Braunfeld v. Brown, 366 U.S. 599, 607, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961) (plurality opinion) ("If the purpose or effect of a law is to impede the observance of one or all religions…, that law is constitutionally invalid even though the burden may be characterized as being only indirect."). Because Encore’s First Amendment argument is premature prior to arbitration, I conclude that Encore is bound by its contract.

PromiseKeepers, 53 F.Supp.2d at 1111-1113.